Chong H. Royal v. Department of the Army

Petition for review of the Merit Systems Protection Board in case no. SF1221090670-W-1.

Per curiam.

NOTE: This disposition is nonprecedential

Before NEWMAN, GAJARSA, and PROST, Circuit Judges.

Chong H. Royal petitions for review of the final decision of the Merit Systems Protection Board ("Board") that denied her request for corrective action sought in her Individual Right of Action ("IRA") appeal under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8). See Royal v. Dep't of Army, Docket No. SF-1221-09-0670-W-1, slip op. at 2 (M.S.P.B. July 20, 2010) ("Final Order"). For the reasons stated below, we affirm.

BACKGROUND

In mid-2006, Ms. Royal began a term-limited appointment as a Korean Language Instructor with the Army's Defense Language Institute Foreign Language Center ("DLIFLC"). Her initial assignment was in the Command Language Program ("CLP") at Continuing Education ("CE"), where she taught basic-level Korean language courses.

Beginning in late 2007, Ms. Royal's immediate supervisor, Robert Weckerle, expressed concern with her inability and/or refusal to teach an entire course by herself. At least two counseling sessions resulted. Contemporaneously, Ms. Royal sent a series of e-mails to her second-level supervisor, Steve Collins, alleging abusive behavior by Mr. Weckerle, including rudeness, use of profanity, and a suspected sexual relationship with another subordinate employee.

In April 2008, Ms. Royal was internally reassigned from the CLP to the School of Post-Basic Instruction ("PBI") at CE. She believed this was an interim move pending her placement in an overseas teaching position in Osan, South Korea. From the Agency's perspective, however, the move was not interim, and she was reas- signed to: 1) better assess her teaching proficiency; and 2) accommodate her concerns about working under the supervision of Mr. Wekerle.

At PBI, the Agency continued its evaluation of Ms. Royal's teaching proficiency through regular classroom observation by her immediate supervisor, Dr. KyoungKook Kim, and additional observation by Dr. Gyseon Bae, a member of the DLIFLC Faculty and Staff Development Division. Dr. Kim and Dr. Bae issued independent reviews that revealed deficiencies in Ms. Royal's ability to implement lesson plans with her students and a failure to demonstrate the appropriate level of teaching proficiency.

The Agency issued a written notice to Ms. Royal stating that CE management had decided not to renew her term appointment when it expired on December 19, 2008.*fn1 A Memorandum for the Record dated November 24, 2008, states that the reasons for this decision included Ms. Royal's poor performance, failure to improve, and the collective opinion of CE leadership that she "could [not] reasonably be expected to become the kind of performer that is needed for post-basic instruction . . . ."

Ms. Royal filed a complaint with the United States Office of Special Counsel ("OSC") alleging that the Agency's refusal to renew her term appointment was retaliation for her whistleblowing. On March 31, 2009, OSC made a final determination to close its file on Ms. Royal's complaint. In doing so, OSC explained that there was no violation of 5 U.S.C. § 2302(b)(8) because Ms. Royal's disclosures did not appear to be protected communications and there was no reason to believe that the Agency's personnel action was causally connected to these disclosures.

Ms. Royal timely filed an IRA appeal with the Board. See 5 U.S.C. §§ 1214(a)(3), 1221. Because she voluntarily waived her right to a hearing, the appeal was decided based on the parties' written submissions. The administrative judge ("AJ") issued an initial decision denying Ms. Royal's request for corrective action with respect to alleged retaliation for whistleblowing activity. Royal v. Dep't of Army, Docket No. SF-1221-09-0670-W-1, slip op. at 1 (M.S.P.B. Nov. 17, 2009) ("Initial Decision"). In the Initial Decision, the AJ found that Ms. Royal had exhausted her administrative remedies before OSC, and Ms. Royal's allegations were sufficient to give the Board jurisdiction over her IRA appeal. Initial Decision at 3 (citingYunus v. Dep't of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001)). Indeed, the AJ found that Ms. Royal's communications regarding Mr. Weckerle's profane language constituted protected whistleblowing, and circumstantial evidence implied that the whistleblowing was a contributing factor in the decision not to renew Ms. Royal's term appointment. Initial Decision at 3-4. The AJ nevertheless denied Ms. Royal's request for corrective action because he found that the Agency demonstrated by clear and convincing evidence that it would have taken the same personnel action in the absence of Ms. Royal's whistleblowing. Id. at 4-5. Ms. Royal then filed a petition for review requesting that the Board reconsider the AJ's initial decision.

The Board grants petitions for review only where the claimant presents new or previously unavailable evidence or the AJ makes an error interpreting a law or regulation.

5 C.F.R. § 1201.115. In its Final Order, the Board found that Ms. Royal failed to prove either. Final Order at 1. Accordingly, the Board denied Ms. Royal's petition for review and the AJ's initial decision became final. Id. at 2. Ms. Royal timely filed an appeal to this court. We have ...

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